Establishing Some Threshold Realities : Plain Language: beyond a ‘movement’ - Part 6

Before we move on to consider how the plain-language movement can reposition itself, let's confirm 2 things - just in case there's any doubt:

• Plain language involves more than mere word substitution, see 6.1.
• Plain language is just as accurate, as certain, and as precise as traditional legal drafting. Indeed, it is almost always more accurate, more certain, and more precise. Even judges prefer plain language, see 6.2.

6.1 Beyond mere word substitution
In many ways, the phrase "plain language" is inaccurate. It places too much emphasis on language: on words and on sentences. The reality is that clear legal communication depends on much more than eradicating jargon—mere word substitution—and on much more than familiar sentence structure.

Usually, rewriting a document in plain language involves rethinking the entire document—its content, language, structure, and design—while rigorously focusing on the audience and the purpose of the communication. It is this approach that leads to successful communication.

These things are written about at length elsewhere.

6.2 Plain-language improves accuracy, certainty, and precision
Lawyers are conscious of the accuracy, certainty, and precision of traditional legal language. They are sometimes initially concerned that plain language may jeopardize that accuracy, certainty, and precision. However, their concern can be put to one side.

Detailed research throughout the world, and many "real-life" plain-language documents, have conclusively shown that the arguments raised against plain language are myths.

Writing in plain language does not involve abandoning legal concepts and replacing them with colloquial expressions. Lawyers who are expert in the relevant field are involved in any plain-language rewriting project. All essential legal concepts, terms, and phrases are preserved in plain-language documents.

But legal concepts form only a small percentage of any document — usually, much less than 2%. This leaves 98% of the document available for improvement. Also, remember that rewriting a document in plain language involves much more than mere word substitution, see 6.1.

The fears expressed about plain language and the arguments raised against it are myths. Even judges prefer plain language—as is shown both by surveys and in court.

Surveys in Michigan, Florida, and Louisiana show that when judges (and lawyers) are shown two versions of a document, one in a traditional style and one in plain language, over 80% of them prefer the plain-language version.

In another survey, ten Californian appellate judges and their research attorneys compared plain-language versions of passages from appellate briefs with versions in a traditional style. They rated the traditional versions as "substantially weaker and less persuasive than the plain language versions". Also they inferred that the attorneys who wrote in legalese came from less prestigious law firms than those who wrote in plain language.

Consider these 3 examples of judicial comment on drafting styles: 2 of the comments are critical and one is positive:

• Lord Reid of the English House of Lords:

This clause does not make sense as it stands. But the client must not be penalized for his lawyer's slovenly drafting … I must consider whether underlying the words used any reasonably clear intention can be discerned …
… no rational person would insert provisions like that. I was surprised to learn that this botched clause had somehow found its way into a standard book of precedents …

• Meagher JA of the New South Wales Court of Appeal:

… the difficulty chiefly arises because the policies, and other documents, emanating from the insurer could not be more perplexing if they had been specifically drafted in order to generate ambiguity.

• Heerey J of the Federal Court of Australia considering a document prepared by the plain language unit at the Australian law firm Mallesons Stephen Jaques:

The plain words of the guarantee are conclusive evidence against the Appellant's [the customer's] argument. The guarantee appears to be a standard form document. In contrast to much traditional bank security documentation, it is clear and comprehensible.

In fact, plain language is more accurate, more certain, and more precise than traditional legal drafting. This is because when a document is in plain language, the people involved in producing and reviewing the document spend less time and effort struggling to understand it. Instead, their energy goes into getting the content and the style right—that is:

• accurate, certain, and precise; and
• clear for the various audiences who will use the document.

6.3 Improving the substance of non-legal documents
Plain language practitioners are familiar with the idea that plain language improves accuracy, certainty, and precision. But the substantive benefits of plain language go even further than that. This point was made by Merwan Saher, Director of Communications with the Office of the Alberta Auditor General in his paper at this Conference when he said:

"What we’ve learned so far is that structure that forces the auditor to discretely set out audit criteria, findings, and implications exposes substandard work. So clear, concise writing influences our audit rigour by identifying the need for more thought or evidence. In summary, by exposing unsupported audit recommendations, plain language improves audit quality."

Merwan's point is worth dwelling on. The theme of this plain language conference is "At the heart of communication across disciplines and around the world". And that is a true and worthy point. But Merwan's point shows us that plain language can be at the heart of more than just communication.

Plain language can also be at the heart of the substantive activities to which communications relate. It's as simple as this: by improving the communications relating to their audits, the people in the Office of the Alberta Auditor General improved the quality of their audits.

Rebutting the misconceptions about a "movement" : Plain Language: beyond a ‘movement’ - Part 5

So plain-language progress is impeded by two closely related misconceptions:

• misconception 1, plain language is a movement; and
• misconception 2, because plain language is a movement, it is relevant only for retail consumers.

That these 2 views are misconceptions is made clear when one considers what's happening on the plain-language front in business.

Let's consider:

• the Canadian financial services organization Clarica;
• the international accountancy firm KPMG; and
• two major Australian law firms that provide plain-language services and that promote the clarity of their advice, and the plainness of the documents they write, as a distinguishing feature of the firm—a feature that adds value for clients.

While we're at it, let's review some plain-language developments around the world.

5.1 A Canadian financial services organization
In 1999, the Canadian financial services organization The Mutual Group demutualised, listed, and rebranded. As part of that rebranding, the company renamed itself "Clarica" and adopted the brand promise "Clarity through dialogue".

Clarica is a play on words for "clarity". The company's television ads show the Word "clarity" first, and then the last 2 letters "ty" rotate to become "ca" to make "Clarica". The company wants people to make the connection between clear communication and the company. As the Clarica website reports:

"Clarica was Mutual Life of Canada. With its conversion to a shareholder company, the century old name was no longer appropriate. The new name was carefully chosen to portray the strength of the company as it heads into a new age. Clarica captures the power of clear dialogue in making personal financial choices, dialogue between the customer and the people of the company to achieve understanding ... clarity ... and the best solutions."

A major market for Clarica is retail customers. Clearly, the organization knew, or found out, that its audience valued clear communication. No surprises there.

But clear communication is for all. We need to remember that at the end of the day, when the people who manage institutional investor organizations and corporate clients go home, those same people are retail customers and retail investors. In that capacity, I bet they want the documents they have to read to make sense, to be clear, and to be easy to deal with. And I bet they feel like that about the documents they have to read at work too—when no one would see them as a retail customer.

5.2 The international accountancy firm KPMG
In Australia, KPMG uses the slogan "It's time for clarity". Fair enough too. Yet the firm's primary audience is not retail consumers. Far from it. And although I'm sure the firm is a good corporate citizen, I'm equally sure it didn't adopt that slogan in support of the plain-language movement. Surely KPMG adopted the slogan "It's time for clarity" because the large corporations it values and seeks as clients—and the people who work in those organizations—value clear communication. So do we all.

5.3 Law firms lead with plain language
Several major law firms in Australia are committed to plain language. They have rewritten their precedents in plain language and have trained their lawyers in plain-language skills. These firms see the clarity of their writing as a distinguishing feature of their business—something that gives them an edge, something that benefits their clients. Some of these firms go further than that. They provide plain-language rewriting services. These firms have had tremendous successes with plain language. For example:

• The firm I used to work for as Head of the Plain English Department, Phillips Fox, (with offices throughout Australia, New Zealand and Vietnam) conducted a brand audit in 2000 to find out what clients and potential clients thought of the firm. The survey showed that the clarity of the firm's advice and documents, and its plain-language rewriting services, were highly recognised and valued. Even many of the survey participants who were not clients of the firm knew of Phillips Fox's plain-language expertise.

• Another firm, Mallesons Stephen Jaques (Australia's largest law firm and winner of "Best Australian Law Firm" in 2001) recently prepared consulting and support services agreements for Microsoft in plain language. Those documents are now being used as a model for Microsoft's services agreements in many countries.

Mallesons Stephen Jaques and Phillips Fox have been working hard on the plain-language front since the early 1990s. In those days they were breaking new ground. Now, many other Australian law firms are active in relation to plain language—all of them would at least claim to write in plain language.

This development in Australian law firms seems likely to be a sign of things to come. After all, today, commercial clients of Australian law firms are prepared to pay for legal services that are plain. One day, clients everywhere will refuse to pay for legal services unless they are plain.

It's worth dwelling on these developments for a moment.

5.4 Plain-language wins the debate and kicks on in law firms and in legislation
As far as I know, this development in Australian law firms is not common in other countries. Also, in the countries other than Australia where law firms are developing plain-language expertise, they seem to be doing so in response to regulatory demand—rather than seeing plain language as an opportunity to provide a new service for clients. For example, major commercial law firms in the US are equipping themselves to write documents that meet the plain-language requirements of the SEC regulations.

The history is very different in Australia where law firms adopted and committed to plain language in response to client demand.

In Australia, clients started demanding plain-language documents as soon as the legal profession fell silent in its debate with the plain-language movement (as it was!) about the incompatibility of clarity on the one hand with accuracy, certainty, and precision on the other hand. That debate was lead, on the plain-language side, by the Law Reform Commission of Victoria under the direction of its Chairman David St L Kelly.

The Commission published a discussion paper and 2 reports on plain language.

The Commission's work generated considerable positive publicity in the general media and even more debate in the legal press. Much of the publicity in the general media focused on various demonstration rewrites that the Commission included in its reports—the classic:

• "before" draft in traditional legal language; and
• "after" draft in clear language that makes sense.

Those sorts of rewrites make good radio.

As the debate flowed on (it never really raged), clients started asking the Law Reform Commission to rewrite legal documents in plain language. At that stage, I had been working at the Commission as a research solicitor for nearly a year. I ended up running a small—very small—business for the Commission that provided document-rewriting services for clients: mainly financial services organizations. (Self-funding law reform we liked to call it.)

At about the same time, some of the legislative drafting offices in Australia began moving forward on the plain-language front. Some of them have done wonderful things, as we'll see later in this paper.

5.5 Some plain-language developments around the world
There's much happening with plain language internationally—for example:

• In the US, plain language has long had a high profile in law schools—many of them offer a legal writing subject that, at least in part, focuses on clear communication. A great deal of the early research on clear written communication was done in the US by the Document Design Centre in Washington DC, much of it under the direction of Dr Janice "Ginny" Redish. But the highlight so far has been President Clinton's Memorandum on Plain Language directing all Executive Departments and Agencies to use plain language. The President's Memorandum was issued on June 1 1998—a red-letter day for plain language everywhere. For the latest US developments, see www.plainlanguage.gov.

• In Canada, there are many plain-language practitioners and advocates. Some of them have law degrees. Also, the Canadian Securities Administration, the federal Department of Finance, the British Columbia Securities Commission, the Office of the Alberta Auditor General, and the Canadian Bankers' Association are all pushing for plain language.

• In the United Kingdom, the Plain English Campaign and the Plain Language Commission have been leading the charge and providing rewriting services and training for many years. There have been 2 major legislative developments. First, the new rules for civil procedure, which greatly simplify the language used in court proceedings. Second a project to rewrite the UK's tax laws.

• In South Africa, plain language is gathering momentum after a long period in which the country was focussed on even more important issues. Some law firms are attempting to establish plain-language practices. The government has been active in legislation. The Canadian lawyer, and plain-language expert, Phil Knight was the plain-language adviser to the Constitutional Assembly in relation to drafting South Africa's new Constitution. Phil has returned to South Africa to work on various legislative projects, the highlights being the Labour Relations Act 1995 and competition legislation.

• In New Zealand, the government is rewriting tax legislation in plain language and some major law firms provide plain-language services.

• In the European Union there is an obvious and huge need for plain-language legal documents. At a conference in Denmark in 1994, translators from the European Union bemoaned the appalling English they were required to translate.

The Commission of the European Communities is striving to ensure that Community legislation is "… worded clearly, consistently and unambiguously … so that it will be easier to understand …" Also, the Interinstitutional Agreement of 22 December 1998 on Common Guidelines for the Quality of Drafting of Community Legislation, together with the Joint Practical Guide on how to Draft Community Legislation, stresses that Community Legislation should be clear, simple, precise "readily understandable by the public and economic operators".

Much progress has been made in Sweden where the government has been pushing for plain language since the early 1970's. The Swedish Ministry of Justice has 6 language experts who work to ensure legislation, and other government documents, are clear.


As part of Sweden's presidency of the European Commission in 2001, Sweden hosted the European Laws Conference in Stockholm in June 2001. The conference included a daylong session on "The need for clarity and public access: Bridging the gap between the Union and its citizens". At the Conference, Martin Cutts of the UK based Plain Language Commission , released his report Clarifying Eurolaw which includes a rewrite of a European Council Directive.

The Conference, and Sweden's ongoing support of various plain-language related proposals, has boosted clear communication in the European Union. Indeed, at the so-called Laeken meeting in December 2001, the European Council announced that it welcomed the plain-language proposals and expects to receive a practical plan from the European Commission.

5.6 What next for plain language?
It seems clear that the so-called plain-language movement is a movement no more. Yet many key decision-makers in business and government see plain language as a sub-branch of the consumer movement. This misconception impedes plain-language progress. For this reason, plain-language needs to reposition itself so that those decision-makers see clear legal—and related—communications as important to their organization's success. I suggest a way to do that in section 8.

Is there a problem referring to the "plain-language movement"? : Plain Language: beyond a ‘movement’ - Part 4

It seems to me that continuing to refer to the "plain language movement" raises 2 problems.

• First, as I mentioned earlier, there is a minor conflict of interest. Plain-language practitioners can end up sending a mixed message, something like: "Join the cause and … umm… err… use my services". One day, that conflict may turn out to hurt the cause.

• Second, and more importantly, I fear that the misconception that plain language is a movement impedes the acceptance, adoption, and implementation of plain language. Let me be frank about this, I think this is a problem for the plain-language movement and for readers and organizations everywhere—and … umm… err... a problem for my business too. (There's the mixed message again.)

People outside the plain-language world who see plain language as a movement usually have a closely related misconception, namely, that plain language is relevant only when writing to "retail consumers"—to the proverbial "mums and dads".

That misconception further impedes progress. For example, plain-language—whether we see it as a movement or an industry—had a major win in 1998, when the United States Securities Exchange Commission implemented regulations that required certain parts of prospectuses aimed at retail investors to be in plain language.
[SEC release 33-7497 (also 34-39593 and IC-23011) January 28, 1998. See www.sec.gov/rules/final33-7497.txt]

A few months later I worked on an international prospectus for one of Australia's 10 largest companies. A team of US lawyers from one of the most prominent New York law firms worked on the documents. They told me about a US prospectus they had worked on a few months earlier in which shares were to be offered to retail investors. So they had prepared the relevant parts of the prospectus in plain language to comply with the new SEC requirements.

Then after the prospectus was more or less complete, their client company changed its mind and decided that the shares would be offered only to institutional investors. So the lawyers rewrote the plain-language document back into legalese. The mind boggles.

The success of plain-language : Plain Language: beyond a ‘movement’ - Part 3

Initially, the plain-language movement focussed on the social benefits of clear legal communication: improving access to justice, and enabling consumers to make more informed decisions.

[See LAW REFORM COMM'N OF VICTORIA, LEGISLATION LEGAL RIGHTS AND PLAIN ENGLISH (1986). See also CHRISTOPHER BALMFORD, Adding Value by Writing Clearly, THE SOUTH AFRICAN LAW JOURNAL, 514 at 533, Vol 111, Part III, (August 1994)]

In more recent times, plain-language proponents moved on to focus on the benefits that plain language can deliver to the people whom the movement was seeking to convert—key decision-makers in business and in government. On the whole, those key decision-makers are more interested in the economic benefits of plain language: improvements in efficiency, effectiveness, and customer satisfaction.

Yet even after this change in focus, many decision-makers outside the legal profession still seem to see plain language as merely a worthy off-shoot of the consumer movement.

Where the plain-language movement has really succeeded is in its debate with the legal profession about whether plain language is accurate, certain, and precise. Plain language won that debate. This is shown by the fact that in most English speaking countries, the legal profession no longer argues that it is impossible for a document to be:

• on the one hand, clear and reader-friendly; and
• on the other hand, accurate, certain, and precise.

It is this success of the plain-language movement that has enabled people to earn a living—and more—through plain language. And that has created the situation in which it is a little odd to go on calling the plain-language thing a "movement".

Making a living: supporting the cause : Plain Language: beyond a ‘movement’ - Part 2

I’m not suggesting there’s anything wrong with people making a living out of plain language: quite the contrary. Indeed, my plain-language activities have been feeding my family these last 10 years. I’m not alone:

• there are people teaching plain-language legal writing in law schools;
• there are people rewriting documents for paying clients; and
• there are people working in, or as consultants to, law firms, businesses, and government bodies to help those organizations develop plain-language precedents, documents, and skills, and to develop cultures that value and deliver clear communication.

Many of these people are passionate about their work. That most of them believe in, and are motivated by, the cause is made clear in the discussion on PLAIN's Plain Language list service. Many of the contributors to that list seem to work in the plain-language field, and their discussions are often about pushing the cause, about winning converts, about spreading the word.

This passion for the cause is also shown in the articles in the legal journal Clarity which regularly present the social and economic benefits of plain language. By the way, the organization Clarity describes itself as "A movement to simplify legal language".

There's that word "movement" again.

It is a wonderful thing that people can make a living by delivering the social and economic benefits of clear legal communication. It strongly suggests that the movement has succeeded—though, to be sure, there’s much to be done in implementing that success and in ensuring that every legal and related document everywhere is easy for its intended audience to understand and to use.

Much to be done indeed.

Plain Language: beyond a ‘movement’ - Part 1

Repositioning clear communication in the minds of decision-makers

1. Introduction
For hundreds of years, people have bemoaned the unintelligibility of legal documents and campaigned to make them clearer. Increasingly, that activity has been described as a movement—the "plain-language movement".

Yet talking about plain language as a "movement" (in the sense of a quasi-political, society-changing cause) seems odd and out of date given that:

• many of the people championing the cause make their living from their plain-language activities (which is fine—but sometimes creates a mild conflict of interest); and
• many commercial organizations use plain language as a distinguishing feature, or provide plain-language related services (even though most of those organizations aren't remotely interested in championing the plain-language cause).

In this article, I review the state of play on the plain-language front and attempt to show that plain-language is a movement no longer. Instead, it has evolved to become a product, a business, an industry, or a professional service. Then I move onto consider how the evolution of plain language affects law firms, their clients, and the State's relationship with its citizens.

Then I suggest that to further build on the success of plain language, we need to help key decision-makers in business and government to see plain language in a new light.

Although my plain language experience has largely been with legal and related documents, the themes in this paper apply equally to all documents used in business, in government, and for consumers.

-------------------
I presented an earlier version of this paper at At the Heart of Communication The Plain Language Association International (PLAIN) 4th International conference. Ramada Hotel and Suites, Toronto, September 26 – 29, 2002 — see www.plainlanguagenetwork.org/. Also, I presented a much earlier version at the Language & the Law Conference , The University of Texas at Austin December 6 - 8, 2001. A conference celebrating the Millionth Volume at the Jamail Center for Legal Research, Tarlton Law Library, at The University of Texas at Austin School of Law.

Plain Language Offers Big Opportunities For Lawyers And Accountants

Lawyers and Accountants - take note: Today's clients are increasingly prepared to pay for documents they can understand. One day soon, they'll refuse to pay for documents they can’t understand.

Plain language has become a distinguishing feature for service providers. It's also central to triple bottom line reporting and to corporate transparency and accountability.

The documents you write form the voice of your brand. When someone reads your documents, their subconscious conducts a reality check on the claims your organisation makes about itself—claims about being, say, "innovative" and "client-focused".

Do your organisation's documents enhance its brand?

Most accountants strive to make their oral communications successful. But too often they write in a style that suggests they are concerned to make their writing "sound like an accountant."

The related problem of a document "sounding like a lawyer" (ugh!) can be worse in the documents that accountants arrange for clients through law firms. Those documents can be impenetrable.

Poor documents increase costs and delay. They alienate and frustrate readers. They sour relationships rather than sweeten them.

Yet the document a client reads - and therefore the clarity of the document - matters to readers. If the document didn't matter, they wouldn't read it.

But increasingly, plain language matters for reasons that go beyond the marketing benefits related to the voice of your brand (as an individual) and the voice of your organisation's brand.

Plain language also matters because of the thinking behind triple bottom line reporting. That sort of reporting requires organizations to be up front, to be transparent, and to be model corporate citizens in every regard. In an age in which the themes of reform and regulation are often full and frank disclosure, clarity becomes a key.

This pressure to be clear applies to clients in their financial reports and it also applies to accountants advising clients how to manage their businesses and how to organise their lives.

Clarity is achieved by focusing on your audience and your purpose. So, let's deal with purpose first.

You almost certainly know how to write. But do you remember why you write?

Consider the range of possible purposes for writing. Those purposes include: advising, persuading, informing, educating, extracting information, marketing, etc.

Yet even though we have many purposes for writing, most of us use the one style most of the time. People seem to develop a work-voice. They want to sound professional. So they decide to write in a way that is "formal" and "traditional". But "formal" plus "traditional" doesn't equal "professional". It equals pompous and out of date.

How many (if any) of the purposes for which you write are best served by using a formal, traditional, "work-voice" style?

Rather than using our work-voice every time we write, we need to let the purpose of that writing influence — or even dictate — the style in which we write. How could one style suit all the possible purposes?

Let's move from purpose to audience. What style do readers prefer?

When we think like a reader, we know the style of document we want. But frequently, as writers, we don’t write in a style we'd like to read. Ask yourself this: What's the best sort of business writing you read that gets sent to you at home? Then ask, would you...could you...do you, write like that at work? (With thanks to Dr Seuss for the rhythm!)

... if you would, could, or do write like that, then that is terrific. Go for it.

... but if you like a clearer style when you are a reader but you feel that you can't use that style when you're a writer at work (perhaps because it would be, say, "unprofessional"), then maybe your work voice is too in control of your writing.

... and if you still have a concern, then think about your readers.

Which style would your readers prefer you to write in? Perhaps you think, well my "more retail clients" (the proverbial mums and dads) would like a clearer and plainer style. But that style would be no good for my commercial clients.

Maybe you are right. But consider two things:

First, at the end of the day, when your commercial clients go home, those same people are retail customers and retail investors. In that capacity, it's almost certain that they want the documents they read to make sense, to be clear, and to be easy to deal with. And it's almost certain they feel like that about the documents they read at work to - when no one would see them as a retail person at all.

Second, are your emails in the same style as your letters? Unlikely. Which style do your most commercial clients prefer? Sure there's a spectrum of styles. With a quick informal administrative email at one end of the spectrum and say, a letter to be included in a prospectus at the other end. But it's likely that your clients would be happier if you wrote many of your letters in a style similar to the style you use in your more formal emails.

To be fair, it all depends on your audience and your purpose. If you are writing to a government regulator to crave an indulgence (say, an extension of time or a waiving of penalty fees) then by all means be fairly formal and traditional. Likewise, if you are writing to a client who is 65 and an English teacher from the old school (or worse, he's the person who taught you grammar at your old school – yikes!), then maybe it's best to take the formality etc. up a level.

But the rest of the time, we need to recognize that there is a comfortable space in between being too formal and being too informal. That is the place your readers probably want you to be in when you write. If you're in that space, then you're likely to write in a way that they can understand, and in a way that makes them feel you really are client-focused, and maybe even innovative.

In turn, you'll probably be happier in that space too. It will feel more natural, more human, and more alive.

After all, for most humans (whether as writers or as readers), a clear, direct, and personal style is likely to be much better, especially for business writing. Better in the sense that it enables people to understand a document the first time they read it. Better in the sense that having finished reading, they are likely to feel positively towards you - the writer. They'll feel more positive because your document has made it easy for them to know what to do next and how to do it.

Maybe your readers will even refer clients to you, saying "You know, I can understand everything she writes the first time I read it. That alone gives me confidence and saves me time."

(Just thinking about "on the other hand" for a moment. Do you think any clients say to their friends and colleagues "Yeah use my accountant. Nice guy. Knows his stuff. The best thing is, I can't understand anything he says or writes. It's fantastic. His style is formal, traditional, and heavy. It's almost like dealing with a lawyer.")

Today, clients are increasingly prepared to pay for documents they can understand. One day soon, they'll refuse to pay for documents they can’t understand. Fair enough too.

Christopher Balmford is an internationally recognized expert in making legal and related documents clear, accurate, and easy to use. For more information, visit his Plain Language website and learn how this can benefit any business.